#16787 - Sources Essay Notes - International Law

Starting point: Art 38 of the Statute of the International Court of Justice (ICJ), 1945

Note: Art 38 is technically limited to sources of international law which the International Court must apply. However, there is no serious contention that it expresses the universal perception of the sources of international law, because

• The function of the International Court is to decide disputes submitted to it “in accordance with international law”

• All member states of the United Nations are ipso facto parties to Art 38 by virtue of Art 93 of the united Nations Charter (further, states that are non-members of the UN can specifically become parties to Art 38)

• Many subsequent treaties and conventions, like UNCLOS 1982, refer to it.

Article 38 refers to treaties as “international conventions, whether general or particular, establishing rules expressly recognized by the contracting states”

The obligation to follow a treaty once has ratified is derived from CIL – the principle of pacta sunt servanda. See also Art 26, VCLT.

If the content of the treaty reflects CIL, then the rules of the treaty, not the treaty itself, becomes binding upon all States, regardless of whether they are parties to the treaty. The CIL will also continue its separate existence (see below on the relationship between customs and treaties).

In the past, there was debate about whether or not treaty obligations amounted to international law. The German philosophical tradition was to treat treaties like contracts. It is not a legal system, merely an agreement.

• Fitzmaurice argued that the only law that is relevant here – that the obligation must be carried out – which is derived from an antecedent general principle of law: pacta sunt servanda.

• There might be treaties which codify existing law. But in those scenarios, the state parties to the treaty will not be following the treaty as much as it is following the law. The treaty is merely an instrument in which the law is conveniently stated and evidence of what it is, but is not in itself law.

• Even if a treaty obligation eventually becomes law, the treaty itself will not be the source of this new law: it will be custom, as more and more states practice the rule.

Article 38(1)(b), Statute of the ICJ: “international custom, as evidence of a general practice accepted as law”

For a new customary rule to be formed, there must be (i) relevant acts of the states concerned amount to a settled practice and (ii) opinio juris. These two elements are respectively an objective (behaviour) and subjective (belief) criterion.

• Nicaragua v USA

Facts and verdict: Nicaragua claimed the US had used armed force and intervened in its affairs contrary to international law. The Court could not consider US ability under the UN Charter and other multilateral treaties because of a US reservation to its acceptance of the Court’s jurisdiction that excluded “disputes arising under a multilateral treaty”. Yet, the court ruled that customary rules on armed force and intervention continued to bind the US in parallel with the obligations under the UN charter and other multilateral treaties

At 207: “...for a new customary rule to be formed, not only must the acts concerned "amount to a settled practice", but they must be accompanied by the opinio juris sive necessitatis.”

1. What counts as state practice?

Omissions are relevant where actions, in particular protests to the actions of other States, are expected. Such circumstances usually arise where a State violates international law. If other States omit to protests, this can be taken as evidence of acquiescence, which is itself evidence that the acquiescing State regards the activity or state of affairs as consistent with international law. The acquiescing State may be counted as a supporter of the rule in question along with any States whose positive actions have contributed to the ‘general practice accepted as law’.

• Anglo-Norwegian Fisheries Case (1951) ICJ Rep 116, at 138, which states that acquiescence cannot be established unless a state has actual or constructive knowledge of the claim being made.

• Navigational and Related Rights (Costa Rica v Nicaragua) (2009) ICJ Rep 213

Facts: Nationals of Costa Rica used to fish on Nicaraguan territory, without the latter’s consent. This kind of behaviour calls for protest from Nicaragua, but the latter remained silent on the issue.

Verdict: Nicaragua’s silence in these circumstances amounted to acquiescence.

At para 141: “For the Court, the failure of Nicaragua to deny the existence of a right arising from the practice which had continued undisturbed and unquestioned over a very long period, is particularly significant.”

Protests are relevant too. In situations where States violate international law, if the other States protests, this strengthens the existing international rule – in this sense, breaches of CIL followed by condemnation by other States strengthens the CIL.

International Law Commission considers that the “records of the cumulative practice of international organisations may be regarded as evidence of customary international law with reference to states’ relations to the organisations”. The International Court also noted that evidence of the existence of rules and principles may be found in resolutions adopted by the General Assembly and Security Council of the UN.

States’ municipal laws may in certain circumstances form the basis of settled practice as well.

• The Scotia case decided by the US Supreme Court in 1871

Facts: British ship sunk American vessel on the high seas.

Verdict: British navigational procedures established by British Parliament formed the basis of international custom since other states had legislated in virtually identical terms. Hence, in not displaying correct light, American vessel was at fault.

Lowe argues that in reality, State practices are not exhaustively compiled. In fact, one of the following two approaches are adopted:

• (1) There are compilations of digests of State practices. Some States publish annual surveys of their practice on points of international law. For e.g., see the Digests of United States practice in international law prepared by the State Department.

• (2) Ignorance. It is rare for the practice of more than a couple of dozen States to be cited on a point of customary law; and not uncommon for far fewer States to be cited. Of course, on some matters by no means all States will have relevant practice. Afghanistan’s practice on the Law of the Sea, for example, is probably sparse. But on other matters practice is widespread. There is in principle no reason for neglecting the practice of any State; but international law as it is practised is a real-time activity. Practitioners do the best that they can within the time available; but that time rarely permits more than a limited scrutiny of material. This leads to the problem of ignoring States whose languages and cultures are more inaccessible. Indeed, the formulation of CIL in the 20^th century was propounded mostly be Western States.

2. Need state practice be universal?

North Sea Continental Shelf Cases: (1) the passage of only a short period of time is not necessarily a bar to the formation of CIL, (2) but an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked.”

Criticism:

1. Akehurst: North Sea Continental Shelf cases must be seen in context. There, acknowledging the equidistance principle as CIL would conflict with pre-existing CIL on the subject; the amount of practice which is needed to establish a new rule which conflicts with the previously accepted rule is greater than the amount of practice needed to establish a new rule in vacuo

2. Some commentators emphasise Article 38(1)(b) ICJ Statute: “international custom, as evidence of a general [(not universal)] practice accepted as law”.

3. What about persistent objector principle?

Akehurst: The number of States needed to create a rule of customary law varies according to the amount of practice which conflicts with the rule. A practice followed by a very small number of States can create a rule of customary law if there is no practice which conflicts with the rule. Moreover, the number of States in the world is now much higher than it was in the nineteenth century and the first half of the twentieth century; many of them have been independent for only a short period of time, with the result that their practice on many topics is non-existent...